Appeal fro the United States Court of Appeals for Veterans Claims in No. 11-726, Judge Alan G. Lance, Sr.
AMY F. ODOM, National Veterans Legal Services Program, of Washington, DC, argued for claimant-appellant. With her on the brief were BARTON STICHMAN and LOUIS GEORGE. Of counsel on the brief was MARY K. HOEFER, Hoefer Law Firm, of Iowa City, Iowa.
ELIZABETH M. HOSFORD, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were STUART F. DELERY, Assistant Attorney General, ROBERT E. KIRSCHMAN, JR., Director, and MARTIN F. HOCKEY, JR., Assistant Director. Of counsel on the brief were DAVID J. BARRANS, Deputy Assistant General Counsel and AMANDA R. BLACKMON, Staff Attorney, United States Department of Veterans Affairs, of Washington, DC. Of counsel was MICHAEL J. TIMINSKI, Deputy Assistant General Counsel.
Before LOURIE, O'MALLEY, and CHEN, Circuit Judges. OPINION filed by Circuit Judge O'MALLEY. Dissenting opinion filed by Circuit Judge LOURIE.
O'Malley, Circuit Judge.
Leonard Beraud challenges a U.S. Court of Appeals for Veterans Claims (" Veterans Court" ) judgment affirming a Board of Veterans Appeals (" the Board" ) decision. That Board decision set the effective date for Beraud's service connected disability award at August 27, 2004. Beraud claims the effective date should be in 1985, when he first filed his disability claim. The Board found that Beraud's 1985 claim for service connection became final upon final denial of an identical claim in 1990. Because the Department of Veterans Affairs (" VA" ) failed to determine whether evidence Beraud timely submitted after the decision on the 1985 claim was new and material under 38 C.F.R. § 3.156(b) (2014), however, that initial claim remained pending, despite the subsequent final decision. We therefore reverse and remand for further proceedings consistent with this opinion.
Beraud served on active duty in the U.S. Navy from July 1974 to July 1977, and thereafter served in the naval reserves until May 1988.
On March 23, 1985, Beraud filed a claim with a VA Regional Office (" RO" ) for, inter alia, a headache disorder described as " headaches by forehead over right eye," allegedly resulting from head trauma while on active duty. J.A. 30, 113. On November 12, 1985, the RO sent Beraud a letter, informing him that it was having difficulty finding his service medical records and requesting that he identify his reserve units so that it could obtain records from them (" November 12 letter" ).
On November 29, 1985, before Beraud responded to the RO's request, the RO issued a rating decision denying his claim, explaining that, although the records before it documented complaints of headaches, those records showed no evidence of a chronic headache disorder. The RO informed him of the decision and of his appellate rights on December 9, 1985.
Although Beraud did not appeal this decision, on December 16, 1985, he responded to the RO's November 12 letter, indicating the location of his additional service medical records (" December 1985 letter" ). The RO never responded to the letter.
On December 29, 1989, Beraud asked the RO to reopen his previously denied claim for headaches. The RO reopened the claim, but denied that claim on the merits on February 12, 1990, finding that Beraud did not incur the headache disorder, or aggravation thereof, during his period of service (" 1990 Decision" ). The RO did not refer to Beraud's December 1985 letter, nor did it mention the medical records that were the subject of the letter. Beraud did not appeal the 1990 Decision.
Beraud again asked the RO to reopen his claim in 1992 and 2002, but the RO denied both requests because it found that
he had not submitted new and material evidence ...